Appeal Agenda 2025-01-28 - Laserfiche WebLink

modified the application by invoking ORS 197.522. The applicant argues: “[T]he applicant stated an intent to amend the proposal as needed to secure an approval, as allowed by ORS 197.522. Nothing in the applicant’ s submittal invokes a 197.522 proceeding before the Hearing Official. Nothing in the second open record submitted requested to modify the proposal.” The applicant argues that the evidence submitted on August 14, 2024, was limited to rebuttal evidence and should be considered. Planning Commission’s Determination For the reasons articulated below, the Planning Commission reverses this portion of the Hearings Official’s decision and will therefore consider the evidence the applicant submitted during the second open record period. First, on balance, the Planning Commission finds that the open record instructions were intended to allow new evidence during the second open record period, as long as the new evidence directly responded to testimony provided during the first open record period. Second, the Commission finds that although the applicant’s materials could have been more clearly written, the applicant did not intend to invoke ORS 197.522 or amend the application. The Commission finds that the new evidence presented by the applicant during the second open record period is intended to rebut testimony submitted during the first open record period and should therefore be considered by the Planning Commission. Open Record Instructions The Planning Commission finds that Planning staff mistakenly provided two different sets of open record instructions to interested parties. One set of open record instructions was provided at the close of the public hearing. That set of instructions incorrectly stated that no new evidence would be accepted during the second open record period, only “responsive testimony. A separate set of open record instructions was included in the application file and posted on the City’s website. That set of open record instructions correctly stated that during the second open record period “[w]ritten testimony (evidence and argument) that directly responds to testimony received during the first open-record period [may be submitted]. Testimony received during the second open- record period should specifically identify the testimony from the first open-record period to which it responds.” (Emphasis added). The open record notice included in the application file and posted on the website is consistent with the City’s usual practice, and more importantly, is consistent with the quasi-judicial procedures required by ORS 197.797(6) and the caselaw interpreting those procedures. See Landwatch Lane County v. Lane County, 75 Or LUBA 302, 307-08 (2017) (new evidence is allowed during the second open record period as long as it responds to evidence and argument submitted during the first open record period); see also Friends of the Hood River Waterfront v. City of Hood River, 67 Or LUBA 179, 195-96 (2013). Both sets of open record instructions provided that the third open-record period was only open to the applicant and the applicant was only allowed to submit “[w]ritten argument (not evidence) that directly responds to testimony received during the first and second open record periods.” The Planning Commission finds that the PowerPoint instructions shown at the public hearing Planning Commission Agenda 01/28/2025 Page 13 of 42